Torres v. Diaz

Filing 81

ORDER by Judge Yvonne Gonzalez Rogers denying as premature 76 Motion for Certificate of Appealability; denying request for stay 80 . (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 7/11/2017)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 JUAN MATIAS TORRES, Petitioner, 5 6 7 8 9 v. RALPH M. DIAZ, Warden, Case No. 12-cv-06224-YGR (PR) ORDER DENYING PETITIONER’S REQUESTS FOR A CERTIFICATE OF APPEALABILITY AND FOR A STAY IN PROCEEDINGS Respondent. This is a habeas case under 28 U.S.C. § 2254 filed pro se by a state prisoner. Petitioner has filed an amended petition raising the same three claims from his original petition as well as six 11 United States District Court Northern District of California 10 additional new claims. Dkt. 59. The Court granted Respondent’s motion to dismiss the six new 12 claims (claims 6-9) as untimely under the one-year statute of limitations established by the 13 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Dkt. 74. The Court noted 14 that it would resolve remaining timely claims (claims 1-3) in a separate written Order. Id. at 16. 15 Petitioner has filed a notice of appeal and a request for a certificate of appealability 16 (“COA”) “on all the new claims in the amended petition.” Dkts. 75, 76. He also requests a stay in 17 proceedings pending the Court’s ruling on his motion for a COA. Dkt. 80. 18 Petitioner’s motion for a COA is DENIED as premature. Dkt. 76. A COA is granted or 19 denied only when the Court issues a final order disposing of a petition for writ of habeas corpus 20 and enters judgment. See 28 U.S.C. § 2253(c)(1). Because the three remaining claims in 21 Petitioner’s amended petition are pending, his request for a COA is premature. The Court will 22 issue or decline to issue a COA when it resolves claims 1-3. Furthermore, because the Court has 23 ruled on the pending motion for a COA, no stay is warranted. Therefore, Petitioner’s request for a 24 stay is DENIED. Dkt. 80. The Clerk of the Court shall terminate Docket nos. 76 and 80. 25 26 IT IS SO ORDERED. Dated: July 11, 2017 27 28 YVONNE GONZALEZ ROGERS United States District Judge

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